Monday, 25 July 2016

Burning the U.S. flag

[On the lawn of the U.S. Capitol, gagged with a U.S. flag, at a press conference with Joey Johnson and others on 21 June 1990, as Congress was voting on whether to amend the U.S. Constitution to outlaw the "desecration" of the U.S. flag.]

Nobody could seriously argue that Joey Johnson's right to burn a flag outside the Republican National Convention is anything other than well-established law.

But instead of respecting that right, a Cleveland prosecutor and police are trying to frame Joey Johnson for something he didn't do, in order to punish him for what he and others did in exercising their right to express themselves by burning a U.S. flag -- just as a Dallas prosecutor and police did in 1984.

Here's what happened last week, some of the back story I was involved in that you won't learn if you only read news reports and/or court records, and why Joey Johnson deserves our support now just as much as he did more than three decades ago.

It's clear from published photos that Joey wasn't one of the people who took the flag from the bank. There's no evidence that Joey held the flag or lit the match. So far as I know, the people who actually stole and burned the flag -- not Joey, although he was part of the group and supported and accepted responsibility for the flagburning -- have never been identified. But the police and prosecutor weren't willing to allow the flagburning to go unpunished just because they didn't really know who was responsible. Apparently they figured, at least initially, that a self-identified communist and revolutionary was as good a scapegoat as anyone else. Joey was carrying a bullhorn, making it easy to portray him as a leader even of a leaderless and anarchic gathering.

Have you ever been at a political demonstration at which anyone did anything illegal? If so, it could have been you in Joey's place in the dock, just as it could have been me. Under the Texas "law of parties", it wasn't necessary for Joey to have been one of those who burned the flag for him to be criminally liable for that act. As it was explained by the judge to the jury at Joey's trial, "A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." That's still Texas law to this day. Any of the people who were present could have been convicted of anything that any of them did, if the prosecutor had chosen to charge them.

Joey was already known to Dallas police as a local troublemaker, making it easy for police to pick him out of a lineup. Testimony at his trial confirmed that police had already pegged him (wrongly) as the instigator of the War Chest Tour. Many of the other organizers and participants in the RNC protests in Dallas were itinerant activists and outside agitators less well known in Dallas. Similar War Chest Tours had been held during the Democratic National Convention in San Francisco a month earlier, and a sizeable contingent of Bay Area punks, squatters, anarchists, and others had gone to Dallas for the RNC protests.

In later appellate legal briefs the prosecutor changed course and tried to portray Joey as an anarchist rather than a communist. Communism, while reviled, is obviously a political ideology protected by the First Amendment. Anarchism is easier to smear, as the prosecutor tried to do, as nihilistic (even if it isn't) and as not expressing any particular political idea that would be protected by the First Amendment (even if it is). That line of argument about meaningless nihilism was ultimately adopted by Justice Rehnquist, who wrote in his dissent from the Supreme Court's opinion that, "Flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea."

I arrived in San Francisco for the first time during the DNC in 1984 (I moved to SF six months later), and many of my friends took part and were arrested on the War Chest Tours. Few of the people I knew then went to the RNC in Dallas, in part out of fear that the Dallas police would be much more hostile and violent than the police in San Francisco. But I certainly supported the protests in Dallas. The triumphalist Nuremberg Rally celebration of the Reagan Revolution (the Nuremberg Rally was, in fact, the Nazi Party's national party convention) and the re-coronation of its "Dear Leader" to another four years with his fingers on the button of nuclear annihilation deserved condemnation and protest, including the burning of the flag recognized around the world as the symbol of U.S. economic and military imperialism.

Among those arrested in the summer of 1984 for protesting both the DNC in San Francisco and the RNC in Dallas was Texas native Michelle Shocked, who had been living in an anarchist squat in San Francisco. The cover of her "Short Sharp Shocked" album is a photo from the San Francisco Examiner of her being arrested during one of the San Francisco DNC "War Chest Tours", and it's at the time of that arrest that she took the nom de guerre of Michelle Shocked ("shell shocked"). Unlike some of the protesters who went home from Dallas after the RNC and forgot about those they left behind like Joey who still faced trumped-up criminal charges, Michelle Shocked stayed in touch with Joey, spoke publicly in his defense, and even invited him onstage to talk to the audiences at some of her concerts while his case was pending in the Supreme Court.

Joey was convicted by a Texas state court on the basis of inflammatory police testimony about his communist beliefs (which should have been considered both irrelevant and protected by the First Amendment, a point the Supreme Court majority brushed off) and his alleged role as a "leader" (in lieu of any evidence as to the identity of the actual perpetrators of the flagburning). He was sentenced to a year in jail.

On appeal, Joey's conviction was overturned by the Texas Court of Criminal Appeals on the basis of already well-established Constitutional law. It's often said that the later Supreme Court decision in Joey's case "established" that the right to burn the U.S. flag is protected by the First Amendment. But that's not really true. The Supreme Court's decision in Texas v. Johnson reaffirmed that burning the flag is "symbolic speech protected by the First Amendment", but that's the same conclusion that the far-from-liberal Texas court had already been compelled to reach on the basis of numerous prior Federal court decisions in cases of flagburning, flag "desecration", and other symbolic and expressive conduct.

What was remarkable was not the Supreme Court's eventual reaffirmation of what were really quite settled principles, but that the Supreme Court decided to hear the case at all. The grant of certiorari signaled, frighteningly, that some Justices thought they could get a majority to reverse their precedents and authorize the creation of a class of secular political symbols defined by law as "venerated objects" and protected by law against "desecration", whatever that might mean.

In light of the prior case law, the arguments for the Constitutionality of the Texas law were so close to frivolous, and appeared to have so little chance of success even after the Supreme Court agreed to hear the case, that Texas state authorities declined to defend the state law. They left it to the assistant district attorney who had tried the case against Joey in local court in Dallas, Ms. Katherine A. Drew, to brief and argue the appeal before the U.S. Supreme Court.

[On the steps of the Supreme Court following oral argument in U.S. v. Eichman, 14 May 1990. Behind me in close-up, left to right: Bill Kunstler, Joey Johnson (with keffiyeh), David Cole (mostly hidden behind me). The defendants, rightly figuring that the cameras and microphones would be turned off as soon as the press heard from their lawyers, asked me to speak first on behalf of the defense committee, followed by each of the defendants and then the lawyers last. The reporters, hewing to the line that events in court are purely legal, not political, and adamantly averse to letting flagburners or those who supported them be seen or heard, were furious. They kept trying to push me aside, shout me down, or shout questions over me to Bill Kunstler while I was speaking. If I look disheveled, give me a break: I had to sleep on the sidewalk in my suit the night before in a line outside the Supreme Court in order to get one of the few seats in the spectator section in the courtroom.]

By the time the Supreme Court agreed to hear the prosecutor's appeal of the Texas court's dismissal of the "desecration" charge against Joey, it was the summer of 1988. Four years had passed since the events that gave rise to the case. Many of those who had been involved with the Dallas and San Francisco War Chest Tours had moved on to other political projects. Others, especially anarchists, held back from supporting Joey because they didn't support the Revolutionary Communist Party (and didn't support any "party" that wants to "lead" a revolution).

The government's attack on Joey was an attempt to frame a loudmouth with a bullhorn, whose words and manner and refusal to be intimidated had antagonized the police, and hold him criminally responsible for everything that happened in his vicinity. Boy, could that have been me! Then the government tried to persuade the Supreme Court to open the door to the "consecration" of political symbols and the creation of a secular religion of state. Even before I met Joey or came to consider him a personal friend, I saw all of this as an attack on my anarchist and atheist beliefs and actions. And I had experience as a non-lawyer legal worker with defense committees and organizing around political trials and appeals in draft resistance and Plowshares disarmament cases.

Over the next couple of years, I worked intermittently as a volunteer with the ad hoc Emergency Committee on the Supreme Court Flag-Burning Case, later renamed the Emergency Committee to Stop the Flag Amendment and Laws. I attended the oral arguments before the U.S. Supreme Court in the 1989 and 1990 flagburning cases, represented the defense committee in television debates, and submitted the written testimony of the Emergency Committee to the 1989 House hearings on a proposed Constitutional amendment and/or legislation to "consecrate" the U.S. flag. I couch-surfed in Washington while working as liaison between flagburners, their political and legal supporters, civil liberties groups, and Congressional staff. (Many of these and related documents are included in a section I contributed to Warren Apel's excellent Flag Burning Page archives.)

Within a few months after the Supreme Court's entirely predictable and unremarkable 1989 decision upholding the Texas court's dismissal of the "desecration of a venerated object" charge against Joey Johnson, Democrats in Congress pushed through the patently unconstitutional Flag Protection Act of 1989. This law defied the Supreme Court's decision and doubled down on the legislative attempt to criminalize flagburning and consecrate the flag as a secular icon, regardless of the Constitution.

There was no significant debate in Congress about whether flagburners should be locked up. Nobody who believed that flagburning should be legal, much less that it was ever appropriate, was allowed to testify at the Congressional hearings on flagburning. The only issue debated by Congress was whether flagburning should be prohibited by a new (unconstitutional) statute or by an amendment to the Constitution. Democrats wanted to outlaw flagburning and lock up dissenters by ignoring the Constitution, while Republicans preferred to accomplish the same result by amending the Constitution.

When former Representative Don Edwards (D-San Jose, CA) died last year, the obituary in his home-town newspaper, the San Jose Mercury News, claimed that, "As chairman of the Judiciary Committee's subcommittee on Civil and Constitutional Rights, Edwards blocked efforts to ban flag burning." In fact, Rep. Edwards was one of the two original co-sponsors and one of the leading promoters of the Flag Protection Act. That was an effort to ban flag burning that remains on the books to this day despite having been found unconstitutional by the Supreme Court in 1990.

Rep. Edwards did many good things during his tenure in Congress and as chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, but his work to enact the Flag Protection Act is one of the major discredits to his reputation as a civil libertarian.

I particularly remember a meeting with Rep. Edwards' long-time aide and lead subcommittee staffer Jim Dempsey (later director of the Center for Democracy and Technology), in which Mr. Dempsey pleaded with me to somehow persuade all the flagburners in the country (many of whom were burning flags specifically to protest flag "protection" proposals including Rep. Edwards' bill, and essentially none of whom were part of any centrally controlled or controllable organization) to stop burning any flags, so that self-censorship would eliminate the "need" for new repressive laws to enable the government to censor or suppress our symbolically dissident speech.

I believe that many of those who made this argument -- which I heard in other meetings with leaders of "liberal" organizations -- meant well. But they were playing an unwitting role in a "good cop, bad cop" coercive drama. If fear of worse repression intimidates dissidents into censoring ourselves, the forces of repression have won a greater victory, and have silenced us more completely, than if they merely put our bodies in cages.

Enactment of the Flag Protection Act of 1989 forced defenders of the right to burn the U.S. flag, tired though we were, to again risk jail, suffer arrest, and fight another round in the Supreme Court.

At the stroke of midnight on 28 October 1989, when the Flag Protection Act went into effect, participants in a protest organized by the Vietnam Veterans Against the War outside the Capitol Hill Post Office in Seattle burned hundreds of flags including small paper flags and a large flag taken from the Post Office. Four people out of several hundred who took part in the flagburning were identified from surveillance photos and charged with violating the Flag Protection Act. None of them were among the organizers of the protest, and none of them had ever met each other. I went to Seattle on behalf of the Emergency Committee, tracked them down from court records, and facilitated the first meeting between the defendants.

But two strikes in successive years in the Supreme Court weren't enough to get the advocates for flag "protection" to give up. Proposals for a Flag Protection Amendment were renewed by Republicans, while Democrats struggled to come up with a new Flag Protection Act of 1990.

The goal of everyone in Congress was to find some way to get flagburners out of sight and our ideas out of mind. The only debate was over the legal basis on which we should be locked up (a new law or a new Constitutional amendment), not whether our ideas should be criminalized.

Later the same day as the press conference at which I was photographed with a sign comparing the proposal to proscribe "desecration" of the U.S. flag with the Nazi law proscribing any action which would "profane" the swastika, I attended a Senate hearing on Measures to Protect the American Flag. Nobody who would have defended flagburning was allowed to testify, so a row of us joined the standees at the back of the overflowing hearing room, all of us gagged with U.S. flags.

The Chairman of the Judiciary Committee, then Senator Joseph Biden, today Vice President, couldn't stop giving us dirty looks, and eventually pressed one of the witnesses on whether the proposals under consideration would allow him to have us locked up:

"The Chairman [Sen. Joseph R. Biden, Jr.]: So... if the young woman standing back there with a flag wrapped around her mouth, for some reason beyond my expectation and knowledge, ... if we did not like that, we could arrest that young woman. Would that be able to be done?" (Senate Judiciary Committee, 21 June 1990)

On this issue, the Democratic Party and its leaders were no defenders of civil liberties.

Now fast forward from 1990 to 2016. What happened last week outside the RNC #Trumpfest in Cleveland?

This photo from the New York Times shows Joey Johnson being pulled off his feet and dragged backward in a chokehold. The burning remnants of the flag are visible on the ground in the lower right corner of the photo. There's no sign of fire on Joey or any of the other people around him, or of any of the police trying to extinguish such a fire. It's hard to see how anyone could see this as evidence that police or firefighters were trying to "help" or "protect" Joey.

As photos by AP, Carolyn Cole of the LA Times, Adrees Latif of Reuters, and this photo and sequence by Andres Kudacki for New York magazine make clear, the first fire extinguisher was directed not at Joey or any of the people around him, but at the flag. Joey was holding the burning at arm's length away from his body in the center of the circle. Neither Joey nor anybody else was on fire. Joey's comrades, shoulder to shoulder, were holding space open for the flagburning against the encircling press of reporters, photographers, and police.

The L.A. Times reported that, "Multiple protesters and witnesses contended that no one's clothing was burning when police moved in." According to one eyewitness:

Immediately after the protest, a photographer standing next to Johnson told Gawker that he had heard officers tell Johnson he was on fire; however, there does not seem to be any photo or video evidence supporting this claim [that he was on fire]. Quite the contrary, actually: The photo from the Associated Press above appears to show the lieutenant rushing in to extinguish the fire on the flag, not a fire on any human body. A Gawker reporter, standing a few feet to the left of this photographer, did not see any evidence to suggest Johnson was on fire.

The official Cleveland police Twitter feed suggests that the police and/or firefighters originally acted deliberately and illegally to stop the flagburning, but later cooked up a new story to try to justify their wrongful suppression of free expression. At 1:37 p.m. on Wednesday, the police Tweeted, "Firefighters extinguished and took the flag that protesters attempted to destroy", with a photo of the remnants of the burnt flag. Almost three hours later, at 4:19 p.m., they Tweeted, "Protestor lit flag on fire, then lit himself on fire, catching others on fire. Flames extinguished by firefighters. No serious injuries."

The charges of failure to disperse are patently false: The photos and videos make clear that the flagburners were completely encircled by reporters, photographers, police, and firefighters. They had no way to disperse, whether or not they wanted to disperse. An order to disperse would almost certainly have been illegal, anyway, especially given the original and near-contemporaneous admission on Twitter by the police that the (unlawful) purpose of their intervention was to take the flag and prevent it from being destroyed.

Johnson denied police reports that he lit himself or anyone else around him on fire; he did not have any visible burn marks or singed clothing. He said he did not feel like he was endangering anyone around him by igniting the flag, and said he had room for his demonstration until police rushed the area around him. "They were trying to pull me out over people, so a number of people grabbed onto me and the police started assaulting people," Johnson said.

As in 1984, anarchists and liberals may be tempted to stand aside while Joey is framed, especially in light of the degree to which the Revolutionary Communist Party has been subsumed into a cult of personality of its Chairman Bob Avakian, alienating both former RCP cadre and former sympathizers and allies outside the RCP.

But that's missing the point. What's happening to Joey Johnson and his comrades in Cleveland is about the demonization of all dissidents, not just the RCP. It's about a frame-up and wrongful use of force by lying police that could have taken down you or me or any of our friends. It's about the right to criticize Donald Trump, the Republican and Democratic Parties, the two-party system, and, yes, U.S. imperialism.

Let's take it from the top: Donald Trump and the Republican Party that has chosen to allow itself to be used as a vehicle for his cult of personality and his abhorrent political line deserve the strongest possible condemnation. Someone needed to be there outside the Trump-fest to say that the Emperor Trump has no clothes. If you'd rather that anti-Trump message have been laced with a different flavor, you could have gone to Cleveland and made your own news. If you think #NeverTrump but you didn't speak up yourself, don't criticize nuances in the messaging of those who did. Be grateful to them for raising their voices for all of us, in the face of Trump's official police and unofficial vigilante defenders.

Frankly, I think the message (paeans to Chairman Bob aside) was actually pretty good. The chant Joey was leading before he lit the flag on fire was, "1, 2, 3, 4 - Slavery, Genocide, and War! 5, 6, 7, 8 - America Was NEVER Great!" I could quibble about the unqualified "never", but basically, he's right. When Trump says he wants to "Make America great again", he's talking about reinvigorating U.S. racism, xenophobia, and imperialism -- the things for which the USA, its government, and the flag that symbolizes that government are most widely and justifiably reviled at home and abroad.

I also agree with Joey Johnson and his comrades that the Democratic Party is not the solution. Rather, the two-party system is part of the problem -- a factor which has never in my lifetime in the USA been so apparent to so many people. I have good friends and comrades who are working night and day to elect Hillary Clinton. I might vote for her myself as clearly the lesser evil. If the kidnappers who are holding you hostage choose to amuse themselves by allowing you to vote for which one of them will stand over you with their finger on the button of nuclear annihilation for the next four years, there's nothing unethical -- even for an anarchist -- in raising your hand for whichever one of them seems least trigger-happy. Surely that's Hillary rather than Donald. But neither is there anything unethical in continuing to place one's priorities on non-electoral work for change.

A fundamental lesson of the movement in support of the right to burn the U.S. flag is that rights not exercised will be lost. "Your First Amendment: Use it or lose it" may seem trite, but it's true.

If thousands of people hadn't burned flags in 1989-1990 in solidarity with Joey Johnson and his co-defendants and comrades, the Bill of Rights would have been amended to take away their right to do so. Joey and many others, probably including me, would now be imprisoned for expressing banned ideas or doing so in banned ways or with banned symbols.

Last but not least are the violent and lying police who attacked Joey and the others around him for the purpose not of of extinguishing burning people or even burning flags per se, but of extinguishing the symbolic voices of anti-Trump protest.

Two things are especially notable about the bogus police claims that Joey set himself and others on fire and that the police attacked the flagburners for their own protection.

First, it's apparent from the videos and photos that the events about which the police are lying occurred at the center of a scrum of dozens of still and video photographers, and that the police must have been aware that they were on camera. But the police lied anyway.

What can we make of this? The only plausible explanation is that lying in official reports, especially in criminal complaints, is so ingrained, so much a matter of habit, and ultimately so unthinking that these police did it even when, had they paused even momentarily to make a choice about whether to tell the truth or lie, they would have realized that their lies were certain to be detected. They didn't stop to think, but acted according to de facto protocol: they did what they thought was right, arrested the people they instinctively defined as criminals, and then made up whatever story they thought was necessary to provide an ex post facto justification for their arrests and other uses of force.

Having heard a hostile heckler jeer, "You're on fire, stupid" slightly after Joey was grabbed and the flag sprayed by a fire extinguisher, the police took that as the story line for their subsequent lies. You can hear the heckler plainly twelve seconds into this video from InfoWars, about five seconds after the first fire extinguisher can be seen being sprayed at the flag. It doesn't sound like the tone of voice a police officer would use, and I wouldn't be surprised if the heckler turns out to have been the InfoWars reporter or photographer.

Of course, police assume that they can just make shit up like this, and they get into the habit of lying, because usually they can get away with it.

But that brings me to my second key point about this case and police lying: Some people think that cameras are a panacea for police perjury and improper use of force. The Cleveland frame-up of Joey Johnson is a test of that belief: I can scarcely imagine a clearer test case of police lying about events that occurred not just in plain view of journalistic eyewitnesses but in front of dozens of cameras.

If the police can frame Joey this time, regardless of the overwhelming volume of close-up photographic evidence, they can convict anyone of anything -- cameras be damned.

"Congress shall make no law ... abridging ... the right of the people peaceably to assemble." (U.S. Constitution)

"Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country." (Universal Declaration of Human Rights)

"Liberty of movement is an indispensable condition for the free development of a person." (United Nations Human Rights Committee)